State v. Rizzo

• Citation: 833 A.2d 363,266 Conn. 171
• Decision Date: 14 October 2003
• Docket Number: (SC 16197)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. TODD RIZZO

266 Conn. 171

833 A.2d 363

STATE OF CONNECTICUT v. TODD RIZZO

(SC 16197)

Supreme Court of Connecticut.

Argued October 30, 2002

Officially released October 14, 2003

Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js. Martin Zeldis, senior assistant public defender, with whom were John Holdridge, assistant public defender, and, on the brief, Ronald Gold, senior assistant public defender, and Mark Rademacher, assistant public defender, for the appellant (defendant).

Michael E. O'Hare, supervisory assistant state's attorney, with whom were John A. Connelly, state's attorney, Maureen M. Keegan, supervisory assistant state's attorney, and, on the brief, Susan C. Marks, supervisory assistant state's attorney, Harry Weller and Carolyn K. Longstreth, senior assistant state's attorneys, and Robert J. Scheinblum, assistant state's attorney, for the appellee (state).

Opinion

BORDEN, J.

This is an appeal¹ from the judgment of the trial court sentencing the defendant to death, following: (1) his pleas of guilty to murder in violation of General Statutes § 53a-54a (a),² and to capital felony in violation of General Statutes (Rev. to 1997) § 53a-54b (9);³ and (2) in the penalty phase of the proceedings, a jury verdict finding that the state had proved an aggravating factor, that the defendant had proved a mitigating factor or factors, and that the aggravating factor outweighed the mitigating factor or factors. The dispositive issues are whether: (1) the trial court properly instructed the jury, under General Statutes (Rev. to 1997) § 53a-46a (e) and (f),⁴ regarding the burden of persuasion on the process of weighing the aggravating factors against the mitigating factors; and (2) the state's closing argument constituted prosecutorial misconduct in violation of the defendant's right to due process of law under the fourteenth amendment to the United States constitution. We conclude that: (1) the court did not properly instruct the jury regarding the burden of persuasion on the weighing process under § 53a-46a (e) and (f); and (2) the state's final argument violated the defendant's right to due process of law. Accordingly, we reverse the judgment of the trial court and remand the case for a new penalty phase hearing.

The state filed an information charging the defendant, Todd Rizzo, with the intentional murder of the victim, Stanley G. Edwards, in violation of § 53a-54a (a), and capital felony for the murder of a person under the age of sixteen in violation of § 53a-54b (9). Following a finding of probable cause by the trial court, Iannotti, J., the defendant pleaded not guilty and elected a jury trial. Thereafter, the state filed a substitute information and bill of particulars charging the defendant with the same two offenses. The defendant thereafter withdrew his prior pleas and elections, and pleaded guilty to both offenses. The court, Holden, J., accepted the defendant's pleas of guilty, and the defendant elected a jury trial for the penalty phase. The state filed a notice of an aggravating factor alleging that the defendant had committed the capital felony in an especially heinous, cruel or depraved manner. Following the penalty hearing, the jury, by way of a special verdict, found that: (1) the state had proved the aggravating factor beyond a reasonable doubt; (2) the defendant had proved the existence of a mitigating factor or factors; and (3) the aggravating factor outweighed the mitigating factor or factors. The trial court accepted the verdict and, accordingly, rendered judgment sentencing the defendant to death. This appeal followed.

The basic, underlying facts of the crimes, namely, murder and capital felony, as established by the defendant's guilty plea, are as follows. During the evening of September 30, 1997, the defendant murdered the victim, then age thirteen, at the defendant's home in Waterbury. He did this by luring the victim into the backyard of the home, where he bludgeoned the victim to death by repeated blows to the head with a three pound sledgehammer.

I THE BURDEN OF PERSUASION ON THE STATUTORY WEIGHING PROCESS

Under our death penalty statutory scheme, the state has the burden at the penalty phase of a capital felony trial to establish the existence of an aggravating factor, specified in § 53a-46a (i); see footnote 4 of this opinion; by proof beyond a reasonable doubt. State v. Daniels, 207 Conn. 374, 394, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). The defendant has the burden to establish the existence of a mitigating factor by a preponderance of the evidence. Id., 385. In this regard, the statutory scheme sets out two types of mitigating factors: (1) statutory mitigating factors, as defined in § 53a-46a (h), which, if found, preclude the imposition of the death penalty under any circumstances;⁵ and (2) nonstatutory mitigating factors, as defined in § 53a-46a (d).⁶ Prior to 1995, a death sentence could be imposed only if the jury found that an aggravating factor existed and that no mitigating factor existed.⁷ Thus, under the prior statutory scheme, if the jury found that a mitigating factor of either type existed, the mandatory sentence was life imprisonment without the possibility of release. General Statutes (Rev. to 1995) § 53a-46a (f); see also State v. Johnson, 253 Conn. 1, 56, 751 A.2d 298 (2000).

In 1995, the legislature amended the statutory scheme to provide for a weighing process by the jury at the penalty phase. See Public Acts 1995, No. 95-19, § 1 (P.A. 95-19). Under the statutory scheme as amended in 1995, the burdens of persuasion regarding proof of the existence of aggravating and mitigating factors remain the same. The state must still establish the existence of an aggravating factor by proof beyond a reasonable doubt, and the defendant must still establish the existence of a mitigating factor by a preponderance of the evidence. Furthermore, the role of a statutory mitigating factor remains the same: proof of its existence will preclude the imposition of the death penalty and mandate a sentence of life imprisonment without the possibility of release. General Statutes (Rev. to 1997) § 53a-46a (g) and (h); see footnote 4 of this opinion.

Under the 1995 amended scheme, however, the role of the nonstatutory mitigating factors has changed. Pursuant to General Statutes (Rev. to 1997) § 53a-46a (e), the jury must return "a special verdict setting forth . . . whether any aggravating factor or factors outweigh any [nonstatutory] mitigating factor or factors," and, pursuant to General Statutes (Rev. to 1997) § 53a-46a (f), if the "mitigating factors . . . are outweighed by . . . [the] aggravating factors . . . the court shall sentence the defendant to death." See footnote 4 of this opinion. Thus, under these provisions, the jury must weigh the aggravating factors proven against the nonstatutory mitigating factors proven, and if the aggravating factors outweigh the mitigating factors, the court must impose the death sentence. The statute is silent, however, with respect to a burden of persuasion on the weighing process itself.

The defendant claims that the applicable burden of persuasion on the weighing process is the traditional criminal burden of beyond a reasonable doubt.⁸ Before considering the defendant's claim, we must first identify it, because it is subject to two different interpretations: one interpretation focuses on measuring the balance between the aggravating factors and the mitigating factors; and the other interpretation focuses on the level of certitude required of the jury in determining that the aggravating factors outweigh the mitigating factors. In other words, we first must clarify whether the defendant claims that: (1) in performing the weighing process, the jury must be persuaded that the aggravating factors outweigh the mitigating factors by some quantum or amount measured by the "beyond a reasonable doubt" standard; or (2) in performing the weighing process, the jury must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors by any degree or amount. Under the first interpretation, the jury must be persuaded that the balance of the aggravating factors against the mitigating factors must tip greatly — in the words of the defendant's request to charge, "substantially"; see footnote 8 of this opinion; — in favor of the aggravating factor such that the quantitative difference between the two factors would be aptly described as "beyond a reasonable doubt." Under the second interpretation, the jury need only determine that the aggravating factor is greater in some degree or amount than the mitigating factor, but, in arriving at that determination, it must be persuaded by a level of certitude of beyond a reasonable doubt. Although it is not altogether clear, a fair reading of the defendant's briefs is that he claims that: (1) the first interpretation is constitutionally required by our state constitution; but (2) even if the constitutional claim fails, the second interpretation should be adopted to fill a gap left by the legislature on the burden of persuasion applicable to the ultimate weighing decision.

Against this background, we consider the defendant's challenge to the constitutionality, under our state constitution, of § 53a-46a (e) and (f). Specifically, the defendant claims that, under our state due process clauses, embodied in article first, §§ 8 and 9, of the state constitution,⁹ in order for the death penalty to be imposed, the jury must be instructed that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. More specifically, the defendant claims that "[the] jury was not instructed about the standard of certainty that the jury needed to employ when deciding whether or not the aggravating [factor] outweighed the mitigating...